Jun 14, 2011

Let's Not Lose Sight of Our Common Goals When it Comes to Whistleblower Protections and Government Transparency

By DANIELLE BRIAN

There is currently a petition circulating asking POGO and other groups to withdraw the award we participated in giving President Obama this spring for his commitment to open government. There is no doubt that the petitioners, many of whom I respect, are right that there are many things to bemoan in the Obama Administration’s implementation of its open government goals. We share many of the reform objectives as the petitioners. While we may at times disagree on how to best achieve those objectives, we shouldn't lose sight of our common goals.

It's undeniable that the Obama administration has achieved more openness than any other recent president. As Tom Blanton of the National Security Archives points out so articulately:

President Obama got that award from us because he produced the best ever – hands down – orders for open government of any president in U.S. history, and he did so on his first day in office. He revoked the regressive Bush order holding up release of presidential records. He threw out the Bush policy that I called “withhold whenever you can” and commanded a “presumption of disclosure” on Freedom of Information releases. He directed agencies to produce open government plans that proactively put their information online so folks like me didn’t have to ask for it anymore. He set an entirely new tone for the entire U.S. government.

And he didn’t stop on the first day. At the end of his first year, he produced an executive order on national security classification that adopted almost all of our reform recommendations, including ordering a fundamental review in every agency of their secrecy decisions. He issued another executive order – against the recommendations of his agencies – that prevented them from setting up an alternative classification system for “sensitive but unclassified” information.

He settled our lawsuit over the White House e-mail by installing a digital archive of all his own and White House staff email, by turning over evidence on the Bush decision not to archive the email, and by preserving the 220 million White House e-mail messages from the Bush years. He settled CREW’s lawsuit over the White House visitor logs by posting them online after 6 months. No other government in the world has achieved this level of transparency. . . .

When we sat in the Oval Office on March 28, Danielle Brian of POGO directly reminded the President that his support of the whistleblower bill was undermined by prosecutions like the Thomas Drake case at the National Security Agency. From the President’s reaction, and that of his staff, I suspect that the problem is not at the White House, but rather at the level of the career prosecutors, like the guy William Welch who is the lead on the Drake case.

If you are circulating petitions, please do not use generalities like “the Obama administration.” Surely you know that in a government as huge as the U.S., the idea that the President actually controls this vast flotilla of agency “ships” ranging from aircraft carriers to rowboats is a myth. The White House likes to say it has turned the wheel all the way over on the supertanker of government, and if government was such a single vessel, maybe so. Yes, Obama has done excellent declaratory policy; the challenge for us as openness advocates is to focus on the people in the agencies who are stopping the change. The people in the agencies who are not following the policy. The people in the agencies and in the courts who are just doing the Bush policies as if the 2008 election never happened. The people who are using inertia and all the bureaucratic impediments in order to prevent what Obama has ordered.

The main reason for the increase in the reported cost of government secrecy is that the government has now developed better means to measure that cost. Not because Obama ordered more secrecy. He did not. In fact, the opposite.

The main reason for the increase in leaks prosecutions is that cases developed under the Bush administration “ripened” last year and this year, and the career prosecutors (abetted by one or two Obama appointees) dared the White House to intervene and risk the Nixon-era opprobrium for “political interference in prosecutions.”. . .

Come join us. Do something concrete to force government to open up. Don't just carp and blog and petition.

Petitions are not going to change the iron law of bureaucracy that all governments will default to secrecy to protect their turf, no matter what.

Please pitch in to the openness battle with some tactics that will actually make a difference to the government.

Don’t spend your precious time and energy attacking other open government advocates.

Those who question POGO’s motives in participating in this meeting should understand that we sat around our conference table as a staff and weighed the consequences. We gave the award for the President's commitment to transparency knowing that we had significant differences with the President and that many challenges remained. We knew there were pros and cons to participating: Did the President’s commitment to more openness need recognition in order to shore up ongoing transparency initiatives? Would having the first-ever Oval Office meeting with transparency NGOs elevate our issues within the White House? Or would giving the President an award let the agencies just rest on their laurels? We fought hard to ensure the meeting was an actual dialogue with the President where we would be pointing to the issues we cared about. But how well would we be able to control the situation? Was the chance to tell the President to his face that we thought his prosecutions of national security whistleblowers were counter to everything he had said publicly about his support for whistleblower protections worth it? I suspected no one had said this to him before, and perhaps more importantly, done so in front of his staff. So we knew this was a calculated risk. But one we decided was worth taking.

Obama himself joked during the meeting, saying something to the effect of “I know how this game works. Yes, you are giving me an award, but you want to use the opportunity to talk to me about what I’m doing wrong.” I was able to highlight not just the pattern of prosecutions, but specifically the Tom Drake case. It was after this meeting that the Justice Department backed down on both the Thomas Tamm and Drake cases. Of course this meeting wasn’t the only reason for the change of course in these cases—but I believe it might have been one of many pressures that came to bear on the over-zealous prosecutors.

My colleagues in the meeting were also able to raise other concerns in our community: Tom Blanton talked about the problems with FOIA implementation and about the need for a cultural change at the agencies to get more information out to the public that helps hold the agencies accountable. Lucy Dalglish of the Reporters Committee for Freedom of the Press talked about the need for a shield law that allows reporters to protect their sources. And Patrice McDermott, of OpentheGovernment.org, raised concerns that the use of the States Secrets Privilege still needs to be far more surgical in order to allow people who had been wronged by the government to be able to seek redress.

Of course, the fact that this rescheduled meeting wasn’t on the President’s calendar made it an easy joke. When we discovered this, we described it as “crazy stupid.” But the fact that the meeting wasn’t open to the press didn’t strike me as unusual—I have meetings all the time with policymakers that are not open to the press. I had announced the meeting on Facebook, Twitter and elsewhere, and several of us bloggedaboutthemeeting immediately afterwards—this was no secret meeting.

So no, I do not regret taking the opportunity to meet with the President and get him to discuss the prosecutions of national security whistleblowers, and I am not going to withdraw our support for the award. I do, however, understand and respect the right of others to draw different conclusions from ours. And I look forward to continuing to work with those who care so deeply about government transparency and whistleblower protections in actually working on these issues.

Comments

I’ve been an active supporter and advocate for federal whistleblower protection for nearly 20 years for reasons that for now will remain untold.

I’ve been struggling with adding a comment here that would be an honest and positive contribution. One that is not simply a venting of my own personal frustration witnessing the recent infighting of the whistleblower community. And one not viewed by those who don’t know me as blind loyalty to any one NGO or whistleblower.

Because I want to understand and remain educated on all whistleblower issues, I reached out and gathered information & opinions from both sides of this award issue. I value anyone’s opinion when presented in a level-headed and respectful manner. I’m pleased I was able to listen to some examples of this on both sides of the argument.

After careful consideration I have come to the conclusion the NGOs decision to go forward with the award and more importantly allowing the direct dialogue with the president is one I can support, not an easy one to support but I do support it. While I respect those who question and for good reasons do not agree with the award, I do not support the idea of the petition to recall the award.

Recently I was given some very sage advice. I was told I must reaffirm an earlier lesson to “stand up for myself when someone is trying to manipulate me...not fight back...but rather stand up for myself”. It was explained the actions can be the same but they come from two very different places - two different energies. Standing up for oneself will help with forward movement. Fighting will drain one’s energy. I offer this as food for thought.

An award is something given to a person or a group of people to recognize excellence in a certain field. Do you really think this administration deserves to be given a golden seal of approval in the field of transparency and anti-secrecy?

This administration is refusing to prosecute those from the Bush camp for their war crimes, illegal spying and surveillance, prosecuting numerous whistleblowers instead.

While Obama's war on whistleblowers intensifies, why would you want to invite more of the same by giving him an award? What were you thinking?

Your excuses that Obama is not in charge are quite lame. If that was true, then you should be striving to meet with those U.S. Attorneys in charge of the ongoing prosecutions of whistleblowers. Of course, no photo-ops and no glory in that, therefore it's more fun to give an award to the President, isn't that what it's all about? Your benefactors are pleased, no feathers are ruffled and the beat goes on... Sounds like your typical MO, but this time you're not getting away without accountability to those whose interests you're supposed to represent - whistleblowers.

I can only speak for myself but I did not intend our petition request as anything other than focused on the issue of the Obama Administration's track record, the increasing governmental secrecy and repression of government whistleblowers that has been ushered in to the surprise of many and counterdicting his campaign promises. As you well know, I have always supported and will continue to support the work of any NGO that is working to reduce government secrecy and to help whistleblowers safely reveal government fraud, waste, abuse, illegalities and/or serious risk to public safety. My op-ed (co-written with Bogdan Dzakovic) that was published by the LA Times last October "WikiLeaks and 9-11: What If?" explains where my views come from regarding the serious problem of excessive governmental secrecy and its terrible consequences for public safety.

Such life and death issues are way too important to allow anyone to get caught up in taking our criticism about the NGOs' flawed reasoning involved in awarding Obama a "transparency" award as if it's a personal criticism of your groups and the work you do. (I only point this out because clearly some of the commenters seem to have interpreted it this way.) I personally had strong hopes that the petition would cause POGO and the other groups to really think and re-consider if it would not be a good idea to rescind their award, especially in light of the truly common and important goal of reducing the unnecessary and counter-productive government secrecy which endangers us all.

I cannot help wondering if you are not seeing how the unjustified awarding of the Nobel Peace Prize actually served to embolden Obama to escalate war on Afghanistan and to start three new undeclared unconstitutional wars (Pakistan, Libya and Yemen). (By the way, the "Constitution Project" nonpartisan organization just initiated a lawsuit against Obama for his illegal war on Libya.)

Awards may seem innocuous but remember Bush's giving of the "Presidential Medal of Freedom" to Bremer and George Tenet to help cover up their fiascos? Did you not see the danger of how an award can work to cover up further wrongdoing? Please think about this and don't respond overnight. Of all the groups based in Washington DC, I would think POGO and the other four, given your commitment to open government and to reducing dangerous secrecy, would be best able to admit a mistake at this point.

"Everything secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity." ---Lord Acton (famous for "Power corrupts...")

How did POGO's revenue increase so sharply in 2009? It appears to be in concentrated donations, given the sharp decline in the 'public support percentage' listed on your Form 990. Were the new/large 2009 donors (donor?) at all involved or communicating with you about the award prior to the award?

>>>"We have not come across a single whistleblower, activist, journalist who sees what you see, or hears what you hear; no one is supporting this award...well, except a handful of organiztaions' executives, board members, and the funding foundations maybe? And why is that, POGO?"<<<

Sibel Edmonds:

Including myself, there were many other "whistleblowers" who declined to sign this petition.

POGO, OMB Watch, the National Security Archive, the Reporters Committee for Freedom of the Press, and OpenTheGovernment.org did the right thing and I support them.

it's 110 degrees here in the north of afghanistan and by mid day the wind feels like a hair dryer pointed at your face with no end. i've been in this area of the world on and off since 05 and after reading all this i am convinced that i understand these people better than my own.

i was a whistle blower the result of which was three months of daily harassment and retaliation. my last moments of work were spent jacked up against a wall, hands and feet spread while i was patted down for my own safety. not allowed to return to my camp i was jetted out of country the next day with a change of clothes and tooth brush.

during those three months of fun the easiest part were those last moments on that wall. had it not been for the people at pogo i'm pretty sure i'd be typing these words out in some federal prison. i don't give a damn about the noble prize, or the academy awards, but i do care that an individual with a conscience is able to find organizations like pogo to consult before stepping off that ledge.

while your busy tearing one another down take a moment to remember their are people with legitimate concerns that need counsel. we are at war and we have our own people opening the proverbial flood gates like mr. manning (who i am convinced would have not acted in the manner he had if he had spoken with one of your organizations). so anytime now please.

honestly, if i had obama's job, i'd shut you all down. give him an award for that.

Danielle, I have a question for you. I saw some names of whistleblowers on the petition. There was Tony Shafer and Colleen Crowley and I think Sibel Edmonds was also a whistleblower. Would you have fought and gone to talk to Obama for them like you did Thomas Tamm and Thomas Drake? If so then I think you did the right thing.

"The problem is not at the White House, but rather at the level of the career prosecutors.." But the White House hires the prosecutors and they serve at the pleasure of the President, so if they are prosecuting whistleblowers, then that's what Obama wants.

"The issues are far better battled if energy is focused on opportunities to fix the ongoing, critical problems we collectively face. Our community needs help pushing the Department of Justice to end prosecutions of whistleblowers and limit the use of states secrets." If that statement is true, then why honor a President who is in charge of the Department of Justice that is doing the prosecutions and increasing the use of the state secrets argument? If you want to focus on fixing the problems, why applaud those who are exacerbating the problems?

What this boils down to is that POGO, like so many other NGO's in Washington, wants access, a seat at the table, and they will sell out their principles to get there. Any organization that really wanted to protect whistleblowers would be loudly blowing the whistle on President Obama's disgusting and egregious escalation of attacks against those loyal Americans who are trying to inform the nation of government malfeasance. Giving him an award for his epic failure to keep his campaign promises of transparency and openness and whistleblower protection is evidence enough that POGO has sold out.

I tried contacting you for your comment(s) but was not given access. Well, here is the rebuttal to this:http://www.boilingfrogspost.com/ We have not come across a single whistleblower, activist, journalist who sees what you see, or hears what you hear; no one is supporting this award...well, except a handful of organiztaions' executives, board members, and the funding foundations maybe? And why is that, POGO? Again, I tried to include your comment, and ask this via phone, but access was denied;-)

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"Lanny Breuer, the Assistant Attorney General who supervises the department’s criminal division, told me, “You don’t get to break the law and disclose classified information just because you want to.”

-Jane Mayer, The Secret Sharer, New Yorker, May 23 2011.

Note: Drake did not disclose classified information, nor was he accused of "disclosure". Note 2: there is no blanket law banning all disclosure of all classified information, as pointed out in Elsea's 2011 CRS paper http://bit.ly/kQ8hNe

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I am a nobody in a far away state who has no skin in the game other than as a citizen and obscure blogger. I don't know anything about policy or politics or strategy. I do understand the need for activists to stick together. I do understand how awards work. I do think infighting is a waste of time and energy.

However.

I find it difficult to understand how the modern use of the Espionage Act has 'nothing to do with Obama', given the facts of the cases.

I am "on record" that POGO is "the gold standard" of watchdog NGO's -but with a caveat - when the gov't lawbreaking benefits it, then "not so much."

POGO has the influence to have the "broken covenant" campaign www.broken-covenant.org accomplish its objective - and if my concerns are substantiated, it means many, if not most, federal whistleblowers in past 33 years get "another bite at apple" to be restored, rehabilitiated, or restituted from the wrongs they have suffered.

I suggest the petition should be a "wake-up" call to POGO and the other involved NGO's who gave Obama the award - that they need more high profile whistleblowers on their boards, so the "play the game, it will go over well with our foundational funding sources reasoning" faces more sharp counterpoints from their Boards.